"I think I was trying to suggest something about the duality of man, sir ... the Jungian thing, sir."
Private Joker, Full Metal Jacket

Thursday, February 20, 2014

The real partisan abuse of the e-mail dump

I am writing a series of columns on the recent release of certain e-mails acquired as part of the John Doe investigation. But I feel compelled to respond to a post by Alex Runner here at Purple Wisconsin. I like Alex. He's a smart guy and a good writer. But, in this instance, he's got it exactly backward. It's folks who are exploiting the Doe to kick dirt at the Governor that are putting partisanship over the rule of law.

Alex argues that, while he hasn't reviewed the e-mails, he's sure that they showed Scott Walker reckless disregarded - or was ignorant of - the law against "campaign work" on the taxpayer's dime. In this, he has plenty of Democratic company. The release of this e-mails - the most significant of which have been public for years - has raised renewed - and irresponsible - accusations.

But all of those "outraged" might well pause and considered the following.

All of the information in these e-mails was available to prosecutors who, for three years, appear to have been moving the earth itself to find wrongdoing in Walker's office.

Yet, although these prosecutors had access to all the information that Alex hasn't read but which he is certain shows Walker is a crook, they didn't charge him.

Why might that be?

The reason, of course, is that no crime was committed. Let me explain why.

First, we must be precise. There is no law that explicitly says something called "campaign work" cannot be done by government workers in the course of their duties. There is a statute explicitly prohibiting raising campaign funds in government buildings and prohibiting a person from soliciting or receiving a contribution or service for political purposes from any officer or employee of a political subdivision during established working hours or while that person is engaged in his or her official duties. Violating this law is a misdemeanor.

But before you get carried away, this statute cannot be applied to any activity that might influence an election because political appointees are always - and should be - doing things to sell their bosses and their policies. More on that later.

There is also a statute that says that it is unlawful for a public officer or employee to exercise a discretionary power in a manner inconsistent with the duties of his or her office in order to obtain a dishonest advantage for the officer or employee or another person. A violation of this one is a felony and this statute is what was used in the caucus scandals and to bump Kelly Rindfleisch's misdemeanor fundraising to a felony.

The theory for applying this statute to at least certain kinds of campaign activity is that it is "inconsistent" with the duties of a public employee to be working on a campaign while on the job and that doing so confers a "dishonest" advantage on the candidate.

Now whether this statute can ever be interpreted this way is not, as Alex would have it, a closed question. In the caucus scandals, legislative leaders argue that to stretch the law to apply to political work long done by staffers on both sides of the aisle would raise constitutional concerns such as due process and fair notice, i.e., it was not possible to know what activity is criminal.

The Court of Appeals rejected that argument but the state Supreme Court never resolved the issue. Three justices recused themselves so the Court sat four. Two Justices agreed with the Court of Appeals but two disagreed and would have reversed. Since the Court split, the Court of Appeals decision was left standing. It is, to be sure, precedent but, to this day, the matter has not been addressed by the Supreme Court.

But even if it is not the application of these statutes to some forms of political activity is not a "gray area," applying them to the activity revealed by these e-mails would be. Indeed, it would seem to be clearly wrong.

This, I suspect, is why charges were not brought. The activity at issue here appears to not to have been the running of a campaign by government workers, but the coordination of messaging in a way that would promote then County Executive Walker and his policies.

But political appointees of elected officials are supposed to promote their bosses and his or her policies. That's not just a concession to an unfortunate reality (elected officials are political animals) but the only way that anything can ever get done. If it were unlawful for policy makers to take into account the political ramifications of official actions and messaging - even to seek advice from political consultants working on a campaign - or to provide information to those folks to tell the story of their boss and her work, we'd soon have to expand the prisons.

Indeed, we'd have to jail elected officials who campaign for themselves or another during the work day or who trade on their status as an elected official for "political purposes." We'd have to prosecute those who maintain elected officials' websites and churn out their press releases. If a candidate facing election ever asks her campaign consultant how to manage a crisis or craft a message about some official action, book her!

I have written before about the problems presented by an aggressive application of the criminal law to political actors behaving politically. What happened here was not clearly inconsistent with the official duty of those undertaking it.

But there is yet another problem. When it comes to political offenses, appearances matter. It is ultimately unsustainable for law enforcement to spend three years scouring the activities of one side while not even asking a question of another. To do so would be selective prosecution. While it may not be a defense to say that "every one does it" and a person accused of a crime can't generally avoid prosecution by pointing to another who did the same thing and wasn't charged, this is a different matter.

The problem here is that it is reasonable to ask whether the decision to investigate was based upon the political speech and association of those chosen for scrutiny. Treating people differently based on their political viewpoint raises concerns under the First and Fourteenth Amendments.

Alex asserts that "Democrats" are more careful about this because some of them have gone to jail for it. So, of course, have Republicans. To say otherwise would be news to Steve Foti.

But we don't know that Democrats are more careful and I would be shocked if political appointees of Democratic politicians don't provide information to campaign staff and don't receive information from campaign staff in the course of their duties. Indeed, some of the examples of Democratic activity left unexamined by prosecutors set forth in Club for Growth's recent suit against certain prosecutors suggests that Democrats are no more "careful" than their Republican counterparts. You can't say that there has not been similar activities on the part of Democrats until you spend three years sorting through their lives.

Let me be clear. I am not suggesting that there be criminal investigations of Democrats. I am suggesting that the criminal law not be used as a political weapon. Whatever one thinks of these Doe investigations, the District Attorney's office was right not to bring charges and partisans are wrong to cry "criminal" when there has been no crime.

Alex Runner doesn't think that partisanship should trump the rule of law.

10 comments:

Anonymous
said...

I don't think Walker did anything illegal. He directed others to do it. Some of whom have been prosecuted. And he lied about it, and still is. But there wasn't enough evidence to prove that. But I cannot believe anyone looks at this scandal and truly believes he didn't know what was going on. And let's remember just because it's legal doesn't make it right.

"It is ultimately unsustainable for law enforcement to spend three years scouring the activities of one side while not even asking a question of another. To do so would be selective prosecution."

Look how clever our dear professor is...inferring that the district attorney perhaps CHOSE not to query into the dastardly deeds of another side due to his own political leanings and/or realization that such an inquiry would bring forth similar actions.

No, sir, the prosecution has the discretion, as you are clearly aware of, to NOT investigate the "other side" in this particular case. Why? Because there was no outward appearance or direct link that the "other side" was in violation of a statute in the first place.

Selective prosecution would entail a DA, when confronted with two individuals who allegedly committed the same crime, to focus there efforts on one person rather than both people with equal ferocity. I cannot believe that the professor made such a basic error in Law 101.

Recall that the actions of ONE SIDE--in this case, Republicans--was properly brought to light and vetted. Although, it is quite possible the DA did ask Democrats on this related matter during the course of the inquiry and was ultimately satisfied by the answers received. The professor, however, probably forgot to note this possibility.

Now, if the professor does want DA's in the future to go on "fishing expeditions" or engage in a "tit for tat" endeavor every time a Republican or Democrat is brought up on charges to avoid the scourge of "selective persecution" (I mean, prosecution), perhaps he can offer his two cents worth to those lawyers in charge on how to proceed without allocating precious taxpayer dollars.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.